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Cite as: [2004] UKPC 17, [2004] 1 WLR 1689, [2004] WLR 1689

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Boodhoo & Ors v. Attorney General of Trinidad and Tobago (Trinidad and Tobago) [2004] UKPC 17 (01 April 2004)

Privy Council Appeal No. 8 of 2003

(1) Jerome Boodhoo (President) and

(2) Khemkaran Jagram (Secretary) (suing on behalf of

themselves and all other members of the

Sanatan Dharma Sudhar Sadha) Appellants

The Attorney General of Trinidad and Tobago Respondent

FROM

THE COURT OF APPEAL OF

TRINIDAD AND TOBAGO

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 1st April 2004

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood

[Delivered by Lord Carswell]

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The law's delays have been the subject of complaint from litigants for many centuries, and it behoves all courts to make proper efforts to ensure that the quality of justice is not adversely affected by delay in dealing with the cases which are brought before them, whether in bringing them on for hearing or in issuing decisions when they have been heard. In the present appeal the appellants claim that their constitutional rights under the Constitution of Trinidad and Tobago have been infringed in consequence of delay in issuing a decision of the Court of Appeal of that state.

The appellants are the chairman and secretary respectively of the Sanatan Dharma Sudhar Sabha, a body of devotees of the Hindu religion who carry on their religious, educational and cultural activities at the El Socorro Mandir, a temple in San Juan. In 1987 a dispute arose between the Sabha and Mr Deo Somaree Jammuna, who put up a fence on a track leading to the Mandir. The appellants issued proceedings on behalf of themselves and all other members of the Sabha, claiming declarations and injunctions. The action was heard over a number of days, commencing on 5 December 1988, and on 14 April 1989 the trial judge (Hamel-Smith J) dismissed the appellants' claim with costs.

The appellants appealed to the Court of Appeal and the appeal eventually was heard (before Ibrahim, Gopeesingh, Permanand JJA) in May 1996. Judgment was reserved, but before it was prepared or given one of the judges of the court, Gopeesingh JA, who had been in apparent good health, died suddenly on 17 July 1997. The Court of Appeal proposed to list the appeal for hearing de novo in February 1998, but both parties sought assistance from the Attorney General for the costs of the rehearing. The appeal was relisted for hearing on 6 April 1998 (before Hosein, Permanand and Jones JJA). No assistance for the costs was forthcoming and the appellants claimed to be unable to afford to pay for another hearing.

At some time before the rehearing Ibrahim JA, another of the judges who had heard the case in the Court of Appeal, recused himself from taking part in the rehearing, on the ground that he had only recently realised that he knew the brother of one of the parties quite well.

On 3 April 1998 the appellants issued a motion in the High Court, claiming declarations that their constitutional rights had been infringed by the delay of the Court of Appeal in giving judgment and seeking an order for monetary compensation. They also sought a conservatory order staying the appeal listed for 6 April. At the hearing on 6 April counsel for the appellants informed the court that they were seeking a conservatory order and asked for an adjournment. The Court of Appeal refused an adjournment and, as no argument in support of the appeal was presented to them they dismissed it for want of prosecution. Leave to appeal to the Privy Council against this decision was subsequently given by the Court of Appeal (de la Bastide CJ, Permanand and Jones JJA) on 11 May 1998, but the appellants did not pursue it and the appeal was dismissed by an order of the Privy Council on 12 October 2000.

The constitutional motion was heard in the High Court in January 1999 before Bereaux J, who gave a reserved judgment in writing on 16 August 1999, dismissing the appellants' motion. They appealed to the Court of Appeal (de la Bastide CJ, Nelson and Lucky JJA), which dismissed the appeal in a written judgment given on 14 December 2001 by de la Bastide CJ, with which the other members of the court agreed. The appeal before their Lordships against this decision was brought by leave of the Court of Appeal.

The relevant parts of the Constitution are as follows:

"4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall continue to exist, without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely –

(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;

(b) the right of the individual to equality before the law and the protection of the law;

...

5(1) Except as is otherwise expressly provided in this Chapter and in section 54, no law may abrogate, abridge or infringe or authorise the abrogation, abridgement or infringement of any of the rights and freedoms hereinbefore recognised and declared.

(2) Without prejudice to subsection (1), but subject to this Chapter and to section 54, Parliament may not

...

(e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations;

...

(h) deprive a person of the right to such procedural provisions as are necessary for the purpose of giving effect and protection to the aforesaid rights and freedoms.

14(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion.

(2) The High Court shall have original jurisdiction –

(a) to hear and determine any application made by any person in pursuance of subsection (1) …"

The evidence before the High Court was on affidavit and no oral evidence was given. The respondent filed evidence which set out the difficulties faced by the courts in Trinidad and Tobago because of overcrowded lists and lack of judicial resources and the efforts which had been made to reduce the consequent delays. Details were also furnished of the workload of Gopeesingh JA. On this evidence Bereaux J held that, in the context of Trinidad and Tobago and its resources, the period of time taken to deal with the appellants' appeal was not unreasonable. Their Lordships do not find it necessary to express an opinion on this finding, since the Constitution of Trinidad and Tobago, unlike those of many other jurisdictions, does not contain a constitutional right to a hearing or decision within a reasonable time: Director of Public Prosecutions v Tokai [1996] AC 856; and cf Sookermany v Director of Public Prosecutions (1996) 48 WIR 346 at 352. Their Lordships would observe, however, that whereas the question of the resources of the state may be material when deciding if a delay was unreasonable, when one is considering the issue of protection of the law under a provision such as section 4(b) (see, eg, Mungroo v The Queen [1991] 1 WLR 1351), the focus of the court should be on the quality of justice provided rather than the reasonableness of the state's efforts to provide it. What the evidence did establish, as the judge also held, was that other decisions were delayed as long as that in the appellants' case and that accordingly no case had been made out on the allegation that there had been discrimination against them which infringed their right to equality before the law. Counsel for the appellants did not pursue this issue at the hearing before the Board.

The appellants founded their main contentions on sections 4(a) and 4(b) of the Constitution, submitting that their rights to the enjoyment of property and to the protection of the law had been infringed. They also claimed that they had been deprived of the right to a fair hearing, contrary to section 5(2)(e), and of the right to procedural provisions necessary for giving effect and protection to those rights and freedoms, contrary to section 5(2)(h). Their Lordships agree with the view expressed by de la Bastide CJ, when at pages 10-11 of his judgment in the Court of Appeal he expressed reservations about the applicability of section 5(2)(e) or 5(2)(h) to a case such as the present. Referring to the right to protection of the law secured by section 4(b), he stated:

"It seems to me that this is the right that can most appropriately be invoked by persons who complain of delay by a court in delivering judgment or for that matter failure to deliver judgment. Surely, if the protection of the law means anything, it must mean that persons are entitled to have recourse to the appropriate court or tribunal prescribed by law for the purpose of enforcing or defending their rights against others or resolving disputes of one kind or another. It is axiomatic that such a right is meaningless without a decision by the court or tribunal to which the claim or dispute is referred for adjudication. In my view the right to a decision by the court or tribunal to which a claim has properly been referred, is one of the manifestations of the right to the protection of the law which is not expressly mentioned in section 5 of the Constitution. Since this right sits so comfortably within the ambit of the right to the protection of the law, it is unnecessary, I suggest, to strive to force it artificially into one of the other rights by straining the language in which they are expressed."

Their Lordships do not propose to devote further consideration to the rights in section 5, since they themselves regard the case, as did the Court of Appeal, as one which must be made out under section 4(b), or possibly section 4(a), if it is to succeed.

The appellants originally contended under section 4(a) that the property of which they had been deprived was the opportunity of going on before a second panel for a rehearing of their appeal after the death of Gopeesingh JA, or alternatively the costs which had been thrown away by the need to have the appeal reheard after his death. The first of these contentions was rejected by the Court of Appeal, on the ground, with which their Lordships entirely agree, that they did not lose the right to go on with the rehearing, which the court was ready to afford them, but on the contrary they elected to pursue a different remedy by way of a constitutional motion. The Chief Justice was prepared to accept, following Kareem v Attorney General of Trinidad and Tobago (unreported) 21 December 1990; Civil App No 71 of 1987, that the loss of a chose in action could be a deprivation of property. He declined to hold, however, that delay in giving judgment could amount to such a deprivation unless it rendered nugatory the right to pursue the claim. He posed as examples such cases of inordinate delay as Ferreira v Attorney General (unreported) 30 April 1998; HCA No 412 of 1989, where judgment had been given by the Industrial Court of Trinidad and Tobago after 17 years' delay, and Charles v Attorney General (unreported) 26 October 1995; HCA No 433 of 1995, where the judgment of the same Court remained undelivered for 19 years and could not then be given. The present case did not come into this category and could not readily be said to have infringed the rights secured by section 4(a).

The Court of Appeal held that in principle an excessive delay in giving judgment could infringe the section 4(b) rights of a litigant. De la Bastide CJ went on to say at page 12 of his judgment:

"For there to be an infringement of this right, the delay in delivering judgment must, in my view, be of such an order as would really make a mockery of a person's right to have a determination of a matter by the competent court or tribunal."

It is hardly necessary to say that different considerations apply to cases of delay in giving judgment from those concerned in cases of delay in affording a hearing. In the latter type of case the evidence which is to be adduced may no longer be reliable or the testimony of essential witnesses may not be obtainable. In the former, of which Goose v Wilson Sandford & Co, (The Times, 19 February 1998) provides an example, delay may have so adversely affected the quality of the decision that it cannot be allowed to stand. It may be established that the judge's ability to deal properly with the issues has been compromised by the passage of time, for example if his recollection of important matters is no longer sufficiently clear or notes have been mislaid. These are, however, extreme cases, ordinarily associated with inordinately long periods of delay. In his judgment in the present case de la Bastide CJ referred to the setting of target times, observing at pages 13-14:

"I have in the past suggested that in the context of our conditions six months should be regarded as the maximum time which parties should reasonably be expected to wait for a judgment from the High Court or Court of Appeal. I do not think, however, that because the delay in giving judgment has gone past that marker it should immediately and automatically be regarded as an infringement of the litigants' constitutional rights. I think it is necessary to set the bar a good deal higher before that stage is reached, bearing in mind that our Constitution does not provide any right to trial within a reasonable time either in criminal or in civil cases. I have already suggested that it is only when the delay becomes so gross as to make a mockery of a party's right to the Court's adjudication, that the infringement is established. When that occurs is, I think, better left to be established on a case by case basis."

Their Lordships are in basic agreement with these views and with the approach which the Court of Appeal adopted to this issue, subject to the formulation which follows.

In their Lordships' opinion delay in producing a judgment would be capable of depriving an individual of his right to the protection of the law, as provided for in section 4(b) of the Constitution of Trinidad and Tobago, but only in circumstances where by reason thereof the judge could no longer produce a proper judgment or the parties were unable to obtain from the decision the benefit which they should. For example, on an application to prevent the threatened abduction of a child, any delay in giving judgment might deprive both the applicant and the child of the benefit which the legal remedy was there to provide. Their Lordships do not think it profitable to attempt to define more precisely the circumstances in which this may occur or to specify periods of delay which may bring about such a result, since cases vary infinitely and each has to be considered on its merits, applying this principle.

In the present case Gopeesingh JA died almost 14 months after judgment was reserved. It cannot be said that the appellants would have been deprived of the benefit of the appeal if judgment had been given on the day the judge died or after a rehearing of the appeal. Nor can it be said that the court would be unable to produce a proper judgment. It being an appeal, the judge's decision did not depend on oral evidence or the recollection of witnesses' testimony, and there was no suggestion that any documentation had been lost or mislaid. Mr Knox for the appellants submitted that a delay of 12 months was unacceptable, basing himself on such cases as Cobham v Frett [2001] 1 WLR 1775 at 1783. He argued that that must be the top limit, after which any further delay must inevitably give rise to a breach of constitutional rights. Their Lordships are unable to accept that submission. Mr Knox had to accept that if the judge had died within a shorter time, perhaps under six months, without having given judgment, it would constitute a hazard of life and would not amount to a breach of constitutional rights. He also accepted that if a judgment had been produced after 14 months, it would not have been defective. Their Lordships consider that no finite period can be prescribed and that the only applicable principle is that which their Lordships have enunciated.

Citizens who are engaged in litigation have to face a number of possible hazards. The members of a court consisting of an even number of judges may divide evenly, so giving rise to the need for a rehearing. A jury may have to be discharged or a judge to recuse himself at an advanced stage of a trial, without anyone having been at fault. A judge may die or take ill before concluding the hearing of a case or before judgment is given. These constitute the ordinary risks inseparable from litigation, which cannot be laid to the door of the state or be regarded as breaches of constitutional rights. There are limits to the obligation of a state to provide a remedy for misfortunes of this kind. As Lord Diplock remarked in Maharaj v Attorney General of Trinidad and Tobago (No 2) [1979] AC 385 at 399, in referring to erroneous judicial decisions, "The fundamental human right is not to a legal system that is infallible but to one that is fair". It might be regarded as desirable that states should make some provision for financial assistance to parties in the event of the death of a judge, as was done in England and Wales by section 53 of the Administration of Justice Act 1985, but a state cannot be regarded as having deprived litigants of their constitutional rights if it has not brought in such provision.

In their Lordships' judgment the appellants in the present case were not deprived of their rights to the protection of the law under section 4(b) of the Constitution of Trinidad and Tobago or of any other rights under the Constitution. The appeal will accordingly be dismissed with costs.